Examination of witnesses (Questions 180
WEDNESDAY 14 NOVEMBER 2001
MP, MR ROBERT
180. For example, it could have come to the
attention of the authorities through intercept evidence.
(Mr Whalley) Information comes to the authorities
by a variety of means, and of course, the Security Service are
involved in all that, and that is the circumstance in which the
Home Secretary would become informed about the activities of some
of these people.
181. If you want to sell these relatively Draconian
powers to the public, as I am sure you do, you are going to have
to be a little mor specific than using phrases like "a variety
of means". I wonder if we can try and put some flesh on the
bones. You are not doing badly, but sticking with intercept evidence
for the moment, there has been a discussion within the Security
Services and the police about making it available in court, which
would solve this problem, would it not?
(Mr Whalley) Yes. First of all, it is not my intention
to try and sell this to you. I think that is for the Minister.
What I am trying to do is to explain the circumstances in which
this might be used. Of course, there is a debate about the use
of intercept evidence and the Director General of the Security
Service, among others, has commented on that. It is a longstanding
debate, and intercept information is one of those things which
will be available to the Home Secretary in some of these cases,
I have no doubt.
182. Give us another example. Yo have talked
so far about people here. What about somebody coming in from abroad?
Give us an example of somebody likely to fall foul of this.
(Mr Whalley) I come back to the kinds of activity
that they are concerned with, and we have to relate this specifically
to what is said in clause 21(2)(a). In other words, we will be
looking at whether the activities which the Home Secretary is
informed about are related strictly to the tests here. That could
be, as I have said, someone who is organising communications,
training, fund raising, a variety of activities in support of
terrorism, as well as acts of terrorism themselves. Those are
the sorts of activities. But the test here is whether or not they
link with any of the three criteria in clause 21.
183. Has any other European country got these
(Beverley Hughes) Not yet, no. They are under consideration
in a number of European countries at the moment which have not
published or concluded their consideration of the powers they
need to take. As I say, we have asked the Commission to look more
broadly at the issue faced by a number of Member States. I have
to say in relation to that point that each individual Member State
will want to consider the level of threat to national security
they think they are facing. It is clear that, because of the UK's
very prominent involvement in the action in Afghanistan at the
moment compared to perhaps other countries such as Denmark, the
level of perceived threat will be very different, and therefore
the powers that individual states feel they need to take will
consequently be different too.
184. There are countries, Germany for example,
that seem to contain a lot more of these kinds of people than
(Beverley Hughes) We do not yet know what Germany
is going to do. As I say, those matters are still under consideration
and we do not yet have any information about their conclusions
about whether they want to go down this route or not.
185. Do you know of any other Europan country
that is going down this route?
(Beverley Hughes) As I say, we are furthest on in
terms of having published our proposals, and we do not know the
conclusions of the deliberations elsewhere.
186. What about the Americans?
(Beverley Hughes) The Americans are taking powers
to detain people where they are suspected of terrorist activities.
Those powers are quite wide-ranging, and could lead to detention
for quite considerable times pending the ability to deport.
187. Do they have them already or are they still
working on them?
(Beverley Hughes) Just to be absolutely clear, those
were proposals that were in their original bill. I am not yet
clear if they have enacted them.
(Mr Whalley) I am not clear on the detail. I know
that some measures have been authorised by the President.
(Mr Walsh) The United States Act in question was passed
in October. I think the broad outline of their powers on detention
are quite similar to the ones proposed in this Bill in the sense
that they are something which will be reviewed every six months,
which is actually the SIAC procedure. In the United States, and
I think to some extent Canada, they are perhaps more in line.
The USA have already done something which the United Kingdom is
now contemplating, whereas the other EU countries are probably
not as far ahead as we are.
188. I have a list from the library of persons
who have been named in press reports as allegedly involved in
terrorist activities, which I am obviously not going to go through
in any shape or form, but is it not of interest, that, leaving
aside the Middle East for the moment, a person and five others
suspected of involvement in bombing in Italy were allowed into
the United Kingdom a long time ago, in the 1990s, and despite
all the allegations which have been made, they have been allowed
to stay in the United Kingdom? That therefore gives one the impression
that they and perhaps others have seen Britain as a kind of haven,
escaping from places where they would be charged with terrorist
(Beverley Hughes) That may be the perception, and
it may in the past have been the reality, in the sense that the
immigration and detention procedures were neither fast enough
nor robust enough to identify and deal with such people. But I
think the Home Secretary, and indeed the previous Home Secretary
under this Government made it clear that this country will not
be a safe haven for people who should not be here, and who want
to be here to undertake activities that we do not approve of and
which constitute a threat. That is precisely why we are improving
the immigration and asylum system, why we are proposing these
measures here, and why we will also be bringing forward proposals
to improve and streamline the extradition process early in the
189. Are you familiar with the case I have mentioned
of the Italians?
(Beverley Hughes) No.
190. Mr Whalley was talking about Part 4, clause
21(2)(c). I wonder if you would explain what you mean by "has
links with a person who is a member of or belongs to an international
terrorist group" and what the difference is between the two
phrases, "member of" and "belonging to".
(Mr Whalley) I think the answer to that is probably
not much more than what the specific formulation says. The cases
in 21(2)(b) are those where there is some kind of adherence or
allegiance to a particular terrorist group. As we know, of course,
membership or belonging are quite tenuous and diffuse definitions
in this sense, but that is something which will probably be clear
in some cases. There may be other cases where people are conspicuously
in their own terms not members of an organisation but they are
working with that organisation. We know that international terrorist
networks do function on the basis of links between individuals
in various countries, and that is the danger which the Government
is trying to meet in this Bill by making sure that people who
are operating perhaps across borders, in a very tenuous way but
in a way which might be vital to the support of that terrorist
organisation, are covered just as specifically as those who are
actually members of organisations.
191. Minister, earlier on this morning you said,
"We recognise that this is a serious power, not taken lightly."
That being the case, why does the Bill not contain an absolute
expiry clause similar to that contained in the 1984 Prevention
of Terrorism Act?
(Beverley Hughes) Because we do not have a crystal
ball, and we do not know when the circumstances that justify taking
the power in our view are going to expire. What we have provided
for is, in the first instance, a review by Parliament after 15
months, and thereafter on an annual basis, a process of affirmative
resolution in both Houses of Parliament, and therefore it will
be for Parliament to determine, if the Secretary of State does
not do so in the mean time, when the expiry date will be.
192. Would you not agree though that for some
of those who feel very uncomfortable about this proposed Act,
if there were a time limit put on it, that would ease some of
(Beverley Hughes) What would happen if we put a time
limit on it and then Parliament felt it still needed those powers?
It seems to me that what we have put in place, with a review process,
is the right way. It gives Parliament the right to determine whether
these powers should expire on a regular, annual basis, and that
seems to me the right provision to meet the circumstances that
we are in.
193. Surely what would then happen is each year,
each 15 months, whatever the time limit, there will be little
more than a rubber-stamping. Surely if there were an expiry date,
Parliament, the next Parliament or whenever would then have to
look at everything afresh. Would that not be a better way of proceeding?
(Beverley Hughes) As I say, it would be if there were
absolute certainty and you could predict when these circumstances
would change. In the event that we cannot do that at this stage,
looking ahead, it seems to me that the provision for Parliament
to review the situation on an annual basis is the right one. I
do not accept that that would be rubber-stamping, and I think
there will be consideration of what we need to do to make sure
that this is a proper review. I have every confidence that Parliament
will make it such.
194. In reply to one of my colleagues earlier
you also said this would be a temporary power. What is your definition
(Beverley Hughes) It is temporary in the sense that
the Bill does not make it permanent. It institutes the power for
15 months and then, if Parliament does not renew that power through
the process I have described, it will fall.
195. So why can we not have an expiry date on
the Bill? Your answers to me in effect say it does not have to
be permanent, so why can we not just have an expiry date, and
then Parliament can look at it totally afresh?
(Beverley Hughes) I have said three times now that
I do not think we can have an expiry date because we cannot predict
with certainty a date in the future when this power should fall
and when the circumstances will change. But what we have provided
for is a power for Parliament to look at the circumstances afresh
and to decide whether the power should continue or not continue.
That seems to me to be the best way to meet the situation that
we are in.
196. Parliament will every now and again look
at it afresh, as you say, not in the way I would like but in the
way you are saying. Therefore, does the Government propose to
make arrangements for the periodic review of the operation of
the Act by an independent person or body, as happened under the
Prevention of Terrorism legislation?
(Beverley Hughes) There is not a provision for the
same kind of review that was included in the Terrorism act, no.
Parliament will review.
197. Would you agree with me that, again, it
might ease the concerns of those who are very worried about the
ramifications of this Act if there were such an independent review
of the operation of the Act?
(Beverley Hughes) The actual process being put in
place here does involve judicial examination on a case by case
basis of the individuals coming through the SIAC process. I understand
very well that that is not quite the same as what you are proposing,
which is more of an overview of the way the whole thing is operating.
Nonetheless, I think it is a safeguard, an assurance to people
that, built into the system, on each and every case, is a judicial
examination of the way that process is operating for each individual
198. I would just conclude by asking whether
you and your officials could at least look at that possibility.
(Beverley Hughes) If it is raised in the debate, we
199. I am going to turn to asylum claims. Why
are the present powers for rejecting asylum claims of people who
come within Article 1(F) of the Convention inadequate?
(Beverley Hughes) Our current legislation requires
if somebody lodges an asylum claim for that to be dealt with before
consideration of the issues raised by a person's activities and
whether they are a threat to national security. What this Bill
will enable the Government to do if somebody is apprehended because
there is a concern about them, who then puts in an asylum claim,
is that the Secretary of State will, through the certification
process, be able to set aside the asylum claim and deal with the
other issues first. At the moment, under our current legislation
we have to deal with it the other way round, and that means that
we actually cannot take actions against somebody.
(Mr Walsh) The issue is as much for the court or independent
review process as for how the Secretary of State considers the
claim. The provision in the Bill says that if the Secretary of
State comes to the view that the person would be excluded from
the protection of the Convention, either because of Article 1(F)
or because of Article 33(2), if the Secretary of State makes a
certificate to that effect, it requires the review body, which
in this instance would be SIAC, to address that exclusion point
first, and if it agrees with the Secretary of State on that, that
is the end of the asylum claim. There is an asylum claim, but
under this approach the whole asylum claim can be refused purely
on the basis of exclusion, if that is what the Secretary of State
concluded was right. If SIAC agreed, that would be the end of
it. Without this provision, it might well be that SIAC, or indeed
any other court, would itself wish to look at the exclusion clause
and what is often termed the "inclusion" clause, which
is Article 1(A), which is well-founded fear of persecution. What
this provision is doing is putting beyond doubt that if the Secretary
of State wishes to just look at the exclusion clause first and
comes to the view that that applies, and therefore the 1951 Convention
does not apply, the reviewing body, SIAC, and onwards to the Court
of Appeal and the House of Lords, would have to focus on that,
and if they agreed with it, they could not look beyond that.